Sri Suman Das vs Smt. Priyanka Dutta (Das)
2021 Latest Caselaw 1291 Tri

                       HIGH COURT OF TRIPURA
                             AGARTALA
                       Crl. Rev. P. No. 56 of 2021
Sri Suman Das
Son of late Santosh Das, R/O - Madhyapara, Near
Resident of Sri Biplab Ghosh, MLA, P.S - R.K. Pur,
Udaipur, Gomati, Tripura.
                                                   ............... Petitioner(s).
                                 Vs.
1.    Smt. Priyanka Dutta (Das)
Wife of Sri Suman Das residents of- Rajarbag, Near
Ramthakur ashram, P.S- R.K.Pur, Udaipur, Gomati,
Tripura.
2.    Smt. Sayantika Das
Daughter of Sri Suman Das resident of- Rajarbag,
Near Ramthakur Ashram, P.S- R.k.Pur, Udaipur,
Gomati, Tripura. (The Respondent No. 2 is a minor

represented by her mother respondent no.1) ............... Respondent(s).

For Petitioner(s) : Mr. P. Roy Barman, Sr. Advocate.

Mr. Kawsik Nath, Advocate.

For Respondent(s) : Mr. D. K. Das Chaudhury, Advocate.

Date of hearing               :     22nd December, 2021.
Date of Judgment & Order      :     22nd December, 2021.
Whether fit for reporting     :     NO.


            HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY

                    JUDGMENT AND ORDER (Oral)

This criminal revision petition is directed against the judgment

and order dated 8.09.2021 passed by the Family Court, Udaipur in

Criminal Misc.27 of 2020. By the impugned ex parte order the Family

Court granted maintenance allowance of a sum of Rs.5000/- to the wife

of the petitioner and a sum of Rs.3000/- to his daughter and directed

him to pay the said allowance to his wife and daughter w.e.f. 03.03.2020.

It has been directed by the Family Court that the principal amount of

Rs.8,000/- will be paid from the date of the impugned order and arrear

of Rs.1,44,000/- falling due from 03.03.2020 i.e. the date of filing of the

petition would be paid in 18(eighteen) equated installments at the rate of

Rs.8000/- per month. Aggrieved petitioner has challenged the said order

by means of filing this criminal revision petition mainly on the following

grounds:

(i) The Family Court passed an ex parte order without even

serving any notice on the petitioner-husband (respondent in

the Family Court). As a result, petitioner did not get any

opportunity of contesting the case before the Family Court.

(ii) In a separate proceeding under the Protection of

Women from Domestic Violence Act, 2005, wife of the

petitioner was granted monetary relief at the rate of

Rs.7,000/- per month which has been modified in appeal at

Rs.5000/- per month. Petitioner draws a monthly salary of

around Rs.16,000/- per month. Under the impugned order of

the Family Court petitioner will have to pay Rs.16,000/- per

month to his wife including the arrear. This apart, he is also

required to pay Rs.5000/- per month as monetary relief to his

wife arising out of the proceedings under the Domestic

Violence Act. The total amount thus exceeds the amount of

his salary for which the impugned order calls for interference

by this Court.

(iii) Petitioner-husband maintains his old and ailing mother

and other dependents. Moreover, he has several existing

liabilities including repayment of loan taken for construction of

his house. Since he was not summoned by the Family Court,

he could not place these materials before the Family Court

and he was thereby prejudiced.

[2] Heard Mr. P. Roy Barman, learned Sr. advocate appearing

along with Mr. Samarjit Bhattacharjee and Mr. Kawsik Nath, learned

advocates for the petitioner-husband. Heard Mr. D. K. Das Choudhury,

learned counsel representing the respondent-wife and her daughter.

[3] Before adverting to the submissions made by the counsel

representing the parties, the background facts of the case may briefly be

stated which are as follows:

Marriage between the petitioner and respondent was

solemnized on 15.07.2017 at Rajarbag, Udaipur in Gomati district

according to the rites and customs of Hindu marriage. After marriage

respondent accompanied her husband to his place where they led their

conjugal life. In 2018 a daughter (respondent No.2) was born to them.

Gradually matrimonial discord developed between them. On some

occasions the petitioner allegedly committed physical assault on his

respondent-wife. Once upon a time he demanded a cash sum of

Rs.1,00,000/- from his respondent-wife and due to her failure in meeting

his demand she was severely tortured. Subsequently, her father managed

the money and paid the same in two installments to his son-in-law.

Despite fulfillment of his demand he continued torturing his wife and

ultimately drove her out of his home. Her parents sheltered her and her

child. Thereafter she approached the Family Court by filing a petition

claiming monthly maintenance allowance of Rs.15,000/- from her

husband.

[4] The petitioner-husband could not contest the case since

according to him he did not receive any notice in the case. The learned

Judge, Family Court, Udaipur proceeded ex parte against the petitioner-

husband and by the impugned judgment dated 8.9.2021 granted monthly

maintenance allowance of Rs.5000/- to the respondent-wife of the

petitioner and Rs.3000/- per month to his daughter w.e.f 03.03.2020 and

directed the petitioner to pay the principal amount with effect from the

date of the order and the arrear of Rs.1,44,000/- commencing from

03.03.2020 in 18(eighteen) equated monthly installments at the rate of

Rs.8,000/- per month. The relevant extract of the impugned judgment is

as under:

"*****I find no reason to disbelieve the petitioner and her witness. In fact, there is no scope to disbelieve the witnesses as they are not cross- examined by the O.P. Moreover, no discrepancy is found among the statements of the witnesses. It becomes clear that petitioner no. 1 is the legally married wife of the O.P and petitioners No.2 is their minor daughter. Without any reasonable cause and excuse the O.P. is not maintaining the petitioners. Hence, the petitioners are entitled to get maintenance u/s 125 of Cr. P.C from the O.P.

The Petitioner no.1 disclosed in the Affidavit of Assets and Liabilities that the O.P is a Government employee and working in the Office of the SDM, Udaipur. So, it can safely be presumed that the O.P earns sufficiently to maintain his wife and daughter.

Hence, considering the minimum need of the petitioners and the capacity of the O.P. to earn sufficiently, I think it would meet the ends of justice if the O.P pays Rs.5,000/- (rupees five

thousand) per month to the petitioner no.1 and Rs.3,000/- (rupees three thousand) per month to the petitioner no.2, i.e. in total Rs.8,000/-( rupees eight thousand) per month w.e.f 03.03.2020 (i.e. from the date of filing). From the month of October, 2021 he will be paying Rs.8,000/- (rupees eight thousand) per month as monthly maintenance. In addition to Rs.8,000/- he will be giving Rs.8,000/- (rupees eight thousand) more as an arrear maintenance for 18 months i.e. Rs.8,000/- x 18 months = Rs.1,44,000/- w.e.f. 03.03.2020 (i.e. from the date of filing as per the Judgment passed by the Hon'ble Supreme Court of India in Crl. Appeal No. 730 of 2020 passed in Rajnesh vrs. Neha & Anr.) w.e.f. 01.09.2021 within the first week of every English calendar month from the next month through money order and the money order commission will be borne by the O.P.

The amount of maintenance can be remitted to the bank account of the petitioner no.1 if her bank account details is furnished later on.****"

[5] In the course of hearing counsel representing the petitioner-

husband has contended that the petitioner with his monthly income of

Rs.16,000/- is quite unable to pay such huge amount of maintenance

allowance including the arrear to his wife and daughter. Counsel submits

that he is a Group-D employee and his monthly salary is around

Rs.17,000/-. With this income he maintains his ailing mother, dependant

brothers and sisters and he also pays huge amount of monthly premium

towards repayment of outstanding loan which was taken by him for

construction of his dwelling house. It is submitted by the counsel of the

petitioner that apart from the maintenance allowance granted by the

Family Court the petitioner is also paying Rs.5000/- per month to his wife

as monetary relief under a separate order passed in a proceeding under

the Protection of Women from Domestic Violence Act, 2005. Counsel

contends that petitioner-husband is ready to maintain his wife and

daughter. Counsel therefore, urges the Court to decide a reasonable and

fair amount of maintenance allowance after taking into consideration all

the facts and circumstances of the case.

[6] It appears from the record that in a proceeding under the

Protection of Women from Domestic Violence Act, 2005, the learned

Judicial Magistrate, First Class (Court No.2) Udaipur by her order dated

05.08.2021 in CR(DV) 07 of 2020 granted a monthly sum of Rs.7,000/-

as interim relief to the respondent-wife of the petitioner(aggrieved person

in the proceedings under the Domestic Violence Act). The petitioner-

husband challenged the said order in appeal before the learned Sessions

Judge. The learned Sessions Judge, Gomati Judicial District, Udaipur

passed a consented judgment on 18.11.2021 in Criminal Appeal No.09 of

2021 directing the petitioner-husband (appellant in the case before the

leaned Sessions Judge) to pay Rs.5,000/- instead of Rs.7,000/- per

month to his wife till disposal of the main proceedings before the learned

Judicial Magistrate of the first class.

[7] Counsel appearing for the petitioner-husband fairly submits

that the petitioner agrees to pay Rs.7,000/- per month to his respondent-

wife for maintenance of his wife and daughter and he is also ready to pay

Rs.50,000/- as arrear maintenance in 25 equated monthly installments at

the rate of Rs.2,000/- per month. Mr. D. K. Das Choudhury, learned

counsel representing the respondent-wife agrees to the said proposal

under the instruction of the respondent-wife.

[8] Counsel appearing for the petitioner-husband refers to the

judgment of the Hon'ble Apex Court in Rajnesh Vrs. Neha and

Another; reported in (2021) 2 SCC 324 wherein the Apex Court has

held that where successive claims for maintenance are made by a party

under different statutes, the court would consider an adjustment or set-

off, of the amount awarded in the previous proceeding(s), while

determining whether any further amount is to be awarded in the

subsequent proceeding.

[9] Since the parties have come to a settlement with regard to

the maintenance allowance to be paid to the respondent-wife of the

petitioner and her daughter, no separate order for monetary relief is

necessary in the proceedings pending before the Judicial Magistrate, First

Class, Udaipur (Court No.2) under the Domestic Violence Act.

[10] Therefore, as agreed between the parties, the petitioner-

husband is directed to pay monthly maintenance allowance Rs.4,000/- to

his wife and Rs.3,000/- to his daughter by depositing the same in the

individual bank account of his wife w.e.f 01.12.2021. Such allowance shall

be deposited in the bank account of the respondent-wife of the petitioner

within the 1st week of January, 2022 and within 7th day of every

succeeding month. The arrear of Rs.50,000/- as agreed between the

parties shall be paid in 25(twenty-five) equated monthly installments

payable from January, 2022 at the rate of Rs.2,000/- per month.

Therefore, the petitioner shall deposit a total sum of Rs.9,000/- per

month until the entire arrear is paid. After the arrear is fully paid,

petitioner shall be paying the principal amount of Rs.7000/- only. In case

of default, the Family Court shall issue direction for deduction of the

amount from the salary of the petitioner. It is, however, made clear that

in changed circumstances, the parities may file the appropriate petition in

the Family Court at any point of time for alteration of such allowance.

[11] Since the parties have settled their claim with regard to

maintenance allowance, they may file appropriate petition in the Court of

Judicial Magistrate, First Class (Court No.2) at Udaipur in Case No. CR

(DV) 7 of 2020. Learned Judicial Magistrate, may thereafter, pass

appropriate order in the case in the light of the observation made by this

Court. This order does not however preclude the learned Judicial

Magistrate to provide any other relief available under the Protection of

Women from Domestic Violence Act, 2005 if the circumstances so require.

[12] In terms of the above, the criminal revision petition stands

disposed of. Pending application(s), if any, shall also stand disposed of.

Copy of the order be communicated to the Family Court

Udaipur as well as learned Judicial Magistrate, First Class, Udaipur(Court

No.2) for compliance.

Send back the LCR.

JUDGE

Dipankar